Standing Committee B

[Mr. Win Griffiths in the Chair]

Sexual Offences Bill [Lords]

Clause 47 - Indecent photographs of persons aged 16 or 17

Sandra Gidley: I beg to move amendment No. 231, in
clause 47, page 24, line 7, leave out subsection (3).

Win Griffiths: With this it will be convenient to discuss the following:
 Government amendment No. 91. 
 Amendment No. 232, in 
clause 47, page 24, line 22, leave out subsection (4).

Sandra Gidley: The amendment was tabled because of concern about the exception when a child aged 16 or over consents to the activity in question. Clearly, the Government share that concern, and their amendment reassures me greatly.
 The age of consent for sexual activity is 16, but we are discussing a little more than sexual activity in situations in which a photograph could be taken. Although the clause states that photographs should not be widely distributed, such matters would be difficult to police. As soon as a picture has been put on the internet, a 16 or 17-year-old might bitterly regret the decision to consent. I would not like to have some of the decisions that I made at that age to be with me for the rest of my life—[Laughter.] Nothing very interesting, I assure the Committee. 
 Subsections (3) and (4) refer to 
''a child aged 16 or over''.
 The intention behind the Bill is to protect children, but subsections (3) and (4) ensure that it fails to protect all children. I very much welcome the Government amendment, even though it contains a marriage exception and I would prefer such provisions to be left out of the Bill. The amendment does not relate only to a marriage in the traditional sense, but to an ''enduring family relationship''. That is a welcome step forward and the phrase should be used in a couple of other clauses that refer to marriage exceptions. Perhaps the Government will examine those clauses to see if their wording could be made more relevant to Britain today—a matter that was raised by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke). 
 The exceptions in the proposed new section 1A to the Protection of Children Act 1978 will leave the police in their current position when faced with a case of rape. They would have to argue and prove—or disprove—consent. Even if they are married, 16 or 17-year-olds should not be put in that position.

Dominic Grieve: I have great sympathy with the amendment tabled by the hon. Member for Romsey (Sandra Gidley). When I read Government amendment No. 91, which as she rightly said goes a long way towards meeting our concerns and is therefore to be welcomed, it struck me that we are complicating matters. Perhaps it is worth going back to first principles.
 We accept the principle that the age of consent is 16, and that people can marry at that age. At the same time, we accept that 18 is the right cut-off point in laws pertaining to the family or to the protection of minors. I therefore do not find anything philosophically wrong in providing restrictions on what is permissible with a child under 18, even though I may be perfectly content and comfortable with the idea that 16 is the age of consent. Those two things are very different. It is possible to be married to somebody without feeling that it is right to take indecent photographs of him or her. 
 During our previous discussion of the marriage exception, I have tended towards the view of the hon. Lady—although I would not press the matter to a Division. Why are we providing an exception at all? If we think that it is right to protect those under 18 from having indecent photographs taken of them, and from the consequences that flow from that—for example, pictures might be put on the internet and never removed—why are we getting so anxious about providing exceptions? I will be interested to hear the Minister's response. 
 I understand the concept of privacy of marriage, and that a 17 year old who is lawfully married might want to have indecent photographs taken. On the whole, I think that taking indecent photographs of people is undesirable; presumably the Minister does too, or we would not have clause 47. If we agree that it is an undesirable activity, but we accept that adults over the age of 18 must be allowed to do it if they want to, why are we so concerned about allowing an exception for that two-year period? 
 Subject to that, Government amendment |No. 91, which we will hear about in more detail later, is perfectly sensible. It tries to weave its way through the problem. The thing that worries me about the amendment is the phrase, ''enduring family relationship''. How long is a piece of string? Is a relationship enduring after a girl has been with her boyfriend or lived with him for two weeks, or six months, or nine months? Once again, we will have to ask the courts to disentangle that issue. Although I fully understand the intention behind the phrase, it worries me that we will end up with problems in deciding what an enduring family relationship is. I wait to hear from the Minister. I hope that we have a dialogue on the issue. 
 Welcome as the Government amendment is, I wonder, like the hon. Member for Romsey, whether we are making our lives excessively complicated. Why do we not just say, ''No indecent photographs of children under 18, irrespective of the circumstances''? It does not seem to me that the infringement of privacy and the rights of the individual would be so great that that would be improper.

Beverley Hughes: I could answer that last question very simply: the hon. Gentleman may think that we are making heavy weather of the clause and making things excessively complicated, but that is because life itself is complicated. We are trying to weave a way through—a phrase that he used—the competing imperatives with which we are grappling. We are trying to find satisfactory protection from exploitation for people under 18, while acknowledging that over-16s can consent to sexual activity and can marry. We want to accommodate the competing imperatives of protecting the privacy of a marital or enduring relationship and of ensuring the maximum protection for children and young people.
 Amendments Nos. 231 and 232 would remove completely the exceptions provided in subsections (3) and (4), which permit the taking, making and possession of an indecent photograph of a child over 16 with the consent of that child; they also include its distribution to the child. The amendments do not replace those exceptions. The hon. Member for Romsey believes that no exceptions are appropriate—she has made that clear. We believe that some limited exceptions are appropriate, but we accept that the current drafting of the clause is flawed, which is why we have tabled Government amendment No. 91. 
 Clause 47 raises the bar on indecent photographs and pseudo-photographs of children—by inserting new provisions into the Protection of Children Act 1978 and the Criminal Justice Act 1988—to include those depicting children aged 16 and 17. That is in line with our international obligations to ensure that there is protection for children up to 18 from exploitation through pornography. We think that it is right to exclude from the offences those persons who are living in an enduring family relationship with or who are married to the child of that age who is depicted in the photograph. 
 The wording of the clause as it is drafted does not achieve that objective. It has become clear—after debate and consideration—that it might allow a person who is not in such a relationship to take or possess an indecent photograph of a child, albeit with the child's consent. It is also defective in that it does not protect a person who possesses an indecent photograph of his 16 or 17-year-old partner, unless he took that photograph. That is why we tabled Government amendment No. 91, which makes the establishment of the relationship the core—the central feature—of the exception. 
 I shall get to the point raised by the hon. Member for Beaconsfield (Mr. Grieve) in a moment. I am confident that the amendment will allow persons in a marriage or other enduring relationship to take, make, possess, or show to each other indecent photographs of one another, if they wish to, without fear of prosecution. I have checked with officials to ensure that that does not allow a loophole for anybody else to be involved in any other way. The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with or married to the child aged 16 or over in the photograph. In no case 
 may any person other than the child or the partner be in the photograph, nor may it be distributed to any person outside that relationship—and no other person may involved in the taking or making of the photograph.

Dominic Grieve: Does that mean that somebody who had an enduring family relationship with a 16-year-old that lasted a year before breaking up and who took pornographic photographs of her during that time could keep those photographs for the rest of his life, as long as he kept them in his wallet?

Beverley Hughes: It will mean that. However, if he shows those photographs to anybody else, or distributes them in any way, he will be committing an offence. The caveat to that is the consent of the child.

John Randall: Perhaps I should know this, but when the Minister says that no one else can be involved, does that mean that sending the photographs to the chemist or developers counts as other people seeing them? Should I know the answer to that legal point?

Beverley Hughes: I should know the answer. We are not changing the position under current legislation whereby such persons would not be liable. I understand that such persons would not be liable for developing the photographs. If there was a criminal offence, it would pertain to the people involved in the activity.

John Randall: I am querying what would happen if the photographs were viewed by somebody else, albeit in a technical sense—bearing in mind that we are talking about photographs of children under 18, rather than adults.

Beverley Hughes: We are talking about activities being investigated by the police or Crown Prosecution Service that involve people who have taken part in a meaningful way in the production of photographs or pseudo-photographs without the consent of the child. A person who developed photographs could technically be liable, as is the case now, but it is unlikely that they would be prosecuted if they had simply developed the photographs. The focus of the police investigation and prosecution would be on the people who had perpetrated what was regarded as the core of the offence.

Dominic Grieve: I am sorry but I am going to take the Minister of State back to the other point. She said that the person has to consent, but the person has to consent to the taking of the photographs at the time when they were taken. Six months later, when the so-called enduring family relationship has come to an end, that person might be unhappy about those photographs still being in circulation, but there is no criminal sanction in those circumstances with regard to the retention of the photographs in someone's wallet for the rest of his life.

Beverley Hughes: That may well be the case, but that person would have other forms of redress, as the hon. Gentleman knows. However, if originally there was consent, that would not come within the province of this criminal offence.
 Government amendment No. 91 makes the relationship that I have been talking about the central feature of the exception. I am confident that the amendment will allow persons in a marriage or other enduring relationship to make, take, possess or show pictures of each other to each other but will not allow anybody else to be involved in the commission of those activities. 
 The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with the child, or that he was married to the child. Having proved the marriage or other relationship, there is an evidential burden on the defendant to raise an issue in relation to the child's consent to the taking, making or possession of the picture, and his reasonable belief in that consent. In relation to the showing or distribution offence, the defendant is covered by the exception, unless it is proved that the photograph was shown to anyone other than the child. 
 There is not a marriage exception in the Protection of Children Act 1978. Until this Bill is enacted, only children up to the age of 16 will be protected under that Act. When considering what exceptions are appropriate for the offences now that we are raising the age of the child to 18, we have decided that the marriage exception should apply equally to lawfully contracted foreign marriages that are also recognised as valid under the laws of England and Wales. There was a considerable debate on Tuesday in relation to the marriage exception, which applies to child sex offences: as a result of that, we need to re-examine this position. A level of protection from exploitation for young people is appropriate. That is why I cannot accept the Liberal Democrat amendments. 
 The hon. Member for Beaconsfield raised the question of how we define enduring family relationships. He is right that the courts must be left to make that decision in the light of individual circumstances. If he is suggesting that we should try to define that in the Bill, most hon. Members would sensibly recoil from that. However, the fact that it is difficult to define that in the Bill is not in itself a valid argument for not allowing in law the courts to take a view that two people have an enduring relationship that, in their circumstances, is tantamount to marriage and that should therefore be regarded as equivalent to marriage in the context of the exception that we are proposing.

John Randall: My only question for the Minister of State is on the last point about enduring family relationships. I offer a layman's point of view. We have been discussing some things that we can set out and let the courts decide on, but we have been saying that other things are too difficult for a court and they give too much leeway to the lawyers to argue. It might be possible to apply the phrase ''enduring family relationship'' to people over 18, but what about if it is applied to somebody of 16 and two months? It would be very difficult, either way, to prove that it is enduring.

Beverley Hughes: I agree, and I am sure that that would be the view taken by those deciding whether to
 prosecute and by the court when considering the circumstances of such a case.

Dominic Grieve: I am grateful to the Minister and I am extremely sympathetic to the Government's difficulties in trying to steer a course that reconciles the rights of individuals in their private lives with public protection of children. The Government introduced the clause because they thought that there were compelling reasons why protection against the dissemination and taking of photographs should be extended beyond the age of 16 to 18. That is the rationale, otherwise the law would be left as it stands. People, whether they are married or not, may be in need of protection.
 I worry about the phrase ''enduring family relationship''. I cannot remember the statistics on marriage, but I seem to recollect that the rate of break-up of relationships relates in part to the age when the relationship was first entered into: the younger the age of the partners at the start of a relationship, the higher the rate of break-up tends to be. That does not apply universally and I can think of a number of childhood sweethearts who married and lived happily ever after, but there is some evidence that relationships that start at a young age often do not endure. The Minister accepted that, although civil proceedings could subsequently be taken to protect the person who originally consented to the photographs being taken but who was no longer happy about it, another person may remain in possession of the photographs. 
 The Minister said that we can approach the matter when we return to the famous marriage exception. The Government are looking at that, but unless the marriage exception to sexual intercourse generally is changed, a foreigner who comes to this country to live with his 13-year-old bride could take pornographic photographs of that 13-year-old bride and come within the exception provided in the clause. 
 There are two ways of approaching that problem—one is to get rid of the marriage exception—but it highlights a substantial loophole in the Bill. I do not know what the Committee's view is or what the Minister proposes to do if the matter is pressed to a Division, but I would prefer to go away and think about the problem, as we have done previously in the Committee. There is a general feeling of unease in the Committee about the provision. I accept that people have rights to privacy and to respect for their married life. It is rational to argue that if two 17-year-olds are married and want to take pornographic photographs of each other, that is a matter for them. However, the Government accept that 18 is the age at which they would prefer such decisions to be made and I wonder whether we are not making life too complicated. Why do we not just say: no indecent photographs under 18, full stop? 
 The Minister has not wholly satisfied me of the civil liberties and philosophical reasons for not specifying the age of 18. I am sure that some great debate took place in the Home Office, but the Minister has not persuaded me. Such matters are peripheral to people's private lives and if intimate relationships founder because the state prohibits the taking of pornographic photographs, the sooner they founder the better. In the circumstances, the Bill should just say 18.

Sandra Gidley: I, too, think that there is a strong case for saying that this decision can be taken only by an adult, whether they are married or not. This may seem a light-hearted suggestion, but I just want to make the point that 16 and 17-year-olds need parental permission to get married. Should we be considering parental permission for such photos? I really do not know.
 We are trying to protect children, even though they are married. Many agencies regard 16 and 17-year-olds as children. There are long-term effects when relationships break down and a partner is aware that the other partner has such material available and is not quite sure how they will use it. That is worrying. 
 I recently became aware of a case of homophobic bullying over the internet. It involved superimposing a person's face over somebody else's body to make a composite picture. I wondered what would happen if pictures were distributed in that amended form, having been taken within a marriage or enduring relationship at an age of 16 or 17. I am concerned that, if a relationship breaks up and somebody wants to make mischief, there are many creative ways in which to do that. I am not wholly convinced that the provisions give the sort of lifelong protection that we seek for somebody of that age. 
 I will not push the amendment to a vote. We will rethink the matter for Report stage. However, I am not entirely sure that the Government amendment does all that could be done.

Beverley Hughes: In her example, the hon. Lady was talking about pseudo-photographs. The exception would not apply to those. In any case, the consent that we discussed earlier can be withdrawn. It must be continuing consent. So, those kinds of photographs are not covered by the exception, and, in any case, consent would be required.

Sandra Gidley: I thank the Minister for that clarification. I will withdraw the amendment. I am not convinced that the Government have got things completely right and we may wish to revisit the matter on Report.

Dominic Grieve: Another thing that we ought to think about has just crossed my mind. One way or another, we are potentially sanctioning the bringing into circulation—admittedly at this stage just for private use—of pornographic photographs of young boys or girls. If subsequently, at the age of 18, consent were given, those photographs could easily go into general circulation. We are worried about the problem of child pornography, but we are providing a loophole for its production, because, as I understand it, its circulation can postdate by many years the date on which it was originally produced.

Sandra Gidley: The hon. Gentleman raises a good point. There are also well publicised situations involving people who are perhaps not within relationships. If people become famous, photographs can be used retrospectively. The hon. Gentleman makes an excellent point about providing a loophole for pictures of young children. Not all 16-year-olds look 16, 17 or 18. There are some very young-looking 16-year-olds whose photographs could be used titillate
 those who have a taste for such things. I am not sure that that is something that we should encourage. However, at this stage, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment made: No. 91, in 
clause 47, page 24, leave out lines 8 to 27 and insert— 
 '''1A Marriage and other relationships 
 (1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves— 
 (a) that at the time of the offence charged, he was married to the child, or 
 (b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship. 
 (2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves— 
 (a) that at the time when he obtained the photograph, he was married to the child, or 
 (b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship. 
 (3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person. 
 (4) In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented. 
 (5) In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child. 
 (6) In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both— 
 (a) as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, and 
 (b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child, 
 the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.'' 
 ( ) After section 160 of the Criminal Justice Act 1988 (c.33) (possession of indecent photograph of child) insert— 
 ''160A Marriage and other relationships 
 (1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves— 
 (a) that at the time of the offence charged, he was married to the child, or 
 (b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship. 
 (2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves— 
 (a) that at the time when he obtained the photograph, he was married to the child, or 
 (b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship. 
 (3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person. 
 (4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.'''. 
 —[Beverley Hughes.]

Paul Beresford: I beg to move amendment No. 230, in
clause 47, page 24, line 27, at end insert— 
 '(5) Section 5 of the Protection of Children Act 1978 (c.37) shall be amended as follows— 
 (a) After subsection (6) shall be inserted— 
 ''(6A) Where a person is convicted or cautioned in respect of an offence under section 1(1) of this Act, then any equipment that has been used to take, make, store or distribute indecent images of children shall be forfeited. 
 (6B) Section 14(1) of the Powers of Criminal Court (Sentencing) Act 2000 (c.6) shall not apply for the purposes of this section. 
 (6C) Where equipment has been the subject of forfeiture under section (6A) above, a person, other than the person convicted under section 1, shall be entitled to apply to the relevant magistrates' court for return of the equipment if— 
 (a) the equipment forfeited belonged not to the person convicted under section 1 but to the applicant, and 
 (b) the applicant did not have knowledge of the taking, making, storing or distributing of indecent images of children, nor could he be reasonably expected to have known. 
 (6D) The burden of proof for the purposes of section (6C) shall be on the applicant, and the standard of proof shall be the preponderence of probabilities. 
 (6E) Where the court is satisfied that the conditions set out in (6C) above are met, they may order the return of the equipment to the applicant so long as any indecent images that remain on the equipment can be permanently erased.'' 
 (b) In the first line of subsection (7) the words '(2), (6) or (6A)' shall replace '(2) or (6)'.''.'.
 You and the Committee, Mr. Griffiths, will be very aware from our discussions and the briefing that paedophiles collect all sorts of things. The Committee's predominant concern is pornographic photographs, prints, drawings and other images. In the past, those have been kept as hard copy, as we now call it, or on 8 mm film and videos. However, for the purposes of self-stimulation, distribution and membership of various paedophile groups, paedophiles are now using computers. They often store information on hard discs of computers, but, increasingly often we find that their computers do not have hard discs; they use floppy discs, storage pens, CD-ROMS, DVDs and, increasingly, remote storage. Crucially, stored material may be encrypted and the keys to the encryption, or at least some aspects of it, are probably on the computer. 
 The present situation is that if a paedophile is convicted, the police need to get a court order in respect of the equipment. To my regret, I find that that does not always happen—it should happen, but it is not automatic, and the police or the CPS may forget to ask. There is another aspect to my amendment. An individual who is cautioned can ask for the equipment 
 to be returned, as can those who have been pursued by court order and had equipment taken away. Generally, the police try not to give the equipment back. Frequently, the material on them can be deleted, but it is possible to retrieve material after a straightforward deletion. I understand that forms of overwriting can overcome that, but the police should not be put to that extra task. This may be apocryphal, but I understand that sometimes equipment ''suffers an accident''. Somewhere in the office a hard disc is broken or trodden on, a floppy disc is lost or a CD-ROM is broken or severely scratched and so on. However, many paedophiles are beginning to realise that they can ask for the stuff back. I suspect that the Committee would agree that forfeiture should be automatic. 
 A recent interesting case caused me to rethink my amendment to deal with a situation in which not all the equipment belongs to the convicted or cautioned individual. A House of Commons clerk had used House of Commons machinery. According to my original thoughts on the matter, in that case, the House of Commons would not have got its machinery back, which would be somewhat sad. I therefore added a bit to the amendment to allow an application for retrieval by the owner of the equipment, if the owner is not the perpetrator of the offence. 
 I shall not press the amendment. As I did not have a legal career before Parliament, putting amendments together can be rather difficult, particularly in my position, where the maximum number I can count to is about 32, for obvious reasons. I have to be somewhat careful. Even this morning, I found a potential flaw in the amendment. In a way, I have set the police an impossible task—increasingly, the computers that are being seized have no hard disc. They are booted with a floppy disc and put online to pick up material, particularly using servers that are in countries such as Nigeria, which is not very interested in the sort of stuff that is stored on computers. Such computers would be impossible to seize, so I probably should have included a provision in the amendment to specify any equipment taken by the police as part of their investigation, or some argument along that line. 
 However, I suspect that the Committee is au fait with what I am trying to do. I hope that Members will agree with the thrust of the amendment and that after a short discussion we can accept the intention and on Report have an amendment written by someone who is not from my professional background but who is legally qualified.

Dominic Grieve: I thank my hon. Friend for drafting the amendment. Viewed from a lawyer's perspective, it seems rather clearer than if it were the product of legal minds. It clearly shows its intention. It also strikes me as being very sensible, and I therefore hope that the Government will view it favourably.

Humfrey Malins: I simply reinforce what my hon. Friend the Member for Beaconsfield has said. I congratulate my hon. Friend the Member for Mole Valley (Sir Paul Beresford) on his outstanding work over the past few months, which has done the Committee a great service.

Beverley Hughes: I sympathise with the idea behind the amendment. The hon. Member for Mole Valley knows from the time when I chaired the taskforce that I appreciate all his work not only on the Bill but in this area. I know the spirit in which he has tabled the amendment.
 There is an issue about the possible return of computers—or, as the hon. Gentleman says, other kinds of equipment on which indecent photographs can be stored—to a person who has used them to commit an offence under the Protection of Children Act 1999. The hon. Gentleman acknowledged that we must consider several issues. 
 On one hand, I share the hon. Gentleman's concern that the existing legislative provisions for making an order are not always applied for or thought about. I have discussed the matter with officials, and we cannot say hand on heart that there is a robust mechanism that will always retain computers and equipment containing such material. On the other hand, we must work out several sets of issues. First, the hon. Gentleman mentioned the drafting of the amendment, which is a technical issue that we can take away. Secondly, as has been said, there are apparently problems with permanently removing material from the hard drive. Furthermore, such material is often stored not on the hard drive but on floppy discs. Thirdly, how can we deal with equipment that is owned by someone who has not committed the offence? We must work our way round those issues and think of ways to accommodate that problem both in its own right and in relation to the technical issues, which I have just outlined. 
 If the hon. Gentleman agrees not to press the amendment to a vote, I will certainly take away the spirit of his proposals to see whether we can return on Report with something that addresses the issues that I have outlined while assuring the Committee that a robust mechanism will be in place to ensure that equipment is not returned when we suspect that it contains such material.

Paul Beresford: Police forces throughout the country will be grateful to hear the Minister's comments. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Sandra Gidley: I just want to explore the meaning of ''indecent''. Some have advocated the complete removal of the clause because they think it unworkable. I am not sure that I share that view. Some organisations, such as Liberty, have pointed out that it will be impossible to police the clause. The difficulty is establishing age. It has been suggested that a provocative picture of a teenage girl band—we all know that such things sadly exist—which is innocently aimed at teenage girls, could conceivably fall foul of the clause. I thought that somewhere in the Bill there might be a definition of what would be classified as indecent. I may have simply run out of patience and
 got bored, but I could not find one anywhere. Can the Minister clarify where exactly the line between decency and indecency will be drawn?

Beverley Hughes: The hon. Lady raises an interesting point. We all have our own definitions of what is decent and indecent, which may differ to some extent. I do not think that we can put a firm definition in legislation. The fact is that there is not a definition of indecent in this Bill or, as far as I am aware—I stand to be corrected—in any Bill. Rather, the definition of what is indecent is compiled over time in case law. I think that that is right because our ideas on what is decent and indecent change over time with social mores and cultural values. Our understanding of young people changes too. There is a compilation in case law, but no definition in the Bill.

Sandra Gidley: In other Committees on which I have served, where there is vagueness such as this the Government have usually said that they will produce guidelines so that the judge knows what is going on and can direct a jury. We seem to have a complete absence of that here. Perhaps we could have a current set of guidelines to take account of what is thought in 2003. Is that not a workable suggestion for the Government?

Beverley Hughes: The judges and courts will be very familiar with existing case law and will apply their knowledge of that to individual cases. That is the right way to go about it because our ideas about the definitions change with time. It would not be helpful or feasible to try to establish a definition of indecency in legislation. That is much better left to the evolutionary approach through case law.
 The clause will change the definition of a child in respect of indecent photographs under the Protection of Children Act 1999. The age will be raised from under 16 to under 18. The clause offers a reasonable but limited defence to allow the private use of indecent photographs of a child over the age of consent who consents and who is in the circumstances about which we have talked. 
 Question put and agreed to 
 Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 - Criminal investigations or proceedings

Dominic Grieve: I beg to move amendment No. 237, in
clause 48, page 25, line 5, leave out subsection (4).
 Clause 48 provides, understandably, an exemption in relation to indecent photographs under clause 47 for ''Criminal investigations or proceedings''. I understand that to mean that if copies of an indecent photograph have to be made to be circulated in preparation for a trial, those engaged in that process are not thereby exposed to criminal penalties. It also applies to those who need to circulate such material because they are trying to catch someone or identify the person who has been photographed. That all makes eminent sense. 
 However I was slightly more curious about subsection (4). Separately from the other 
 authorisations, there is an authorisation here that can be 
''given by the Director-General of the Security Service if it appears to him necessary for the exercise of any of the functions of the Service.''
 The Security Service may well get involved, for example, in an investigation into the trafficking of underage children for sexual purposes, in which case the photographs will have to be circulated. The small query that emerged in my mind was whether that would give a blanket permission to the Security Service to take photographs of a Ruritanian chargé d'affaires having sex with a 13-year-old for the purposes of inducing him to co-operate with the Security Service thereafter. Although I know that these are subjects over which delicate veils are drawn, I wonder whether, before we gave a statutory sanction to such activities, we might hear from the Minister what is actually involved.

Humfrey Malins: Following on from my hon. Friend's comments, will the Minister explain whether the authorisation give by the director general is to be given specifically—that is to say that the decision making would involve only the director general—or is it wider, meaning that other members of the security services will be able to provide an authorisation under delegated powers from the director general himself? That is my first point. We have come across a parallel in other legislation where someone with a title is given authority, and it is important to clear up whether it is that individual person who has to make the decision and give the authority, or whether that person can delegate to others in his or her organisation. How wide is the prospect of authorisation being given?
 Secondly, because of the slightly unusual circumstances, does the Minister think that there is any merit in the proposition that in the case of the director general giving authorisation, he or she should first seek permission from a High Court judge, or is she entirely happy with the provision as it stands? I join my hon. Friend in probing in relation to the amendment.

Beverley Hughes: I understand the spirit of the probing questions and hope that I can respond to Opposition Members. The effect of their amendment would be to prevent the director general of the Security Service alone, in the list of people to whom we are proposing to give authorisation powers, from giving that authorisation. That would presumably mean that the security services would have to seek authorisation in the list and would receive that only for the purposes listed.
 In relation to the question of the hon. Member for Beaconsfield, I would say two things. First, the security services have a remit in relation to crime anyway. They do not simply deal with intelligence and security, as the hon. Gentleman is aware. It is important, therefore, that they are able to give authorisations to their personnel, as other services would. There is not a neat split between criminal activity and organised terrorist activity that is core to the remit of the security services. 
 To give an example that we have talked about a fair bit, investigations into al-Qaeda took place to determine how such organisations communicate. It may be believed that some information pertaining to national security has been encrypted into a photograph or an image. It would be important for the security services to be able to draw down that image to decode and deconstruct the information that was in the photograph. Use of such images via the internet is one of the mechanisms that we know organisations use to communicate with their members in a secret way. That is a tangible example of why the security services need to be able to give permission to their staff to draw down certain images when they think that information is contained within. 
 The important point is that all the people listed in the clause—including the director general—are accountable for the way in which the authorisation will operate in their organisations. That is the key point. It may be that a particular individual at second tier may see the detail of the request to make a decision but the director general will be personally accountable. There is, therefore, no reason to make the director general of the Security Service go to a High Court judge, when we accept that other people included in the clause can be accountable in that way in law for the decisions that they make when they authorise their staff to draw down such material. 
 I hope that that answer satisfies the hon. Gentlemen. We are not yet satisfied with the drafting of clause 48. The numbers of people who might, with justification, seek authorisation is actually greater than we initially thought as we worked through the clause. Therefore, the clause may be too widely drawn and the system may become overloaded. We are negotiating with the police services and others and we shall table our own amendment on Report. For absolute clarification, we expect to continue to allow the Security Service to ''make'' such images in pursuit of its functions as the clause states.

Dominic Grieve: I suspect that I have got as much information as I am likely to. I am partly reassured by what the Minister of State has told me. Having noted that that is why we are putting the Bill on the statute book in that form, I look forward to seeing the revised list. I accept that all sorts of people may require such authorisations, and we will give the matter further scrutiny.

John Randall: I wondered whether my hon. Friend had received a satisfactory answer to the Ruritanian question because I did not think that we did.

Dominic Grieve: I must say that I did not think that I got a satisfactory answer to the Ruritanian question, and the Minister may acknowledge that. I have a funny feeling that I will not get a satisfactory answer. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 48 ordered to stand part of the Bill.

Clause 49 - Paying for sexual services of a child

Hilton Dawson: I beg to move amendment No. 9, in
clause 49, page 26, line 26, leave out 
 'against a person under 16'.

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 10, in 
clause 49, page 26, line 28, leave out subsections (5) and (6).

Hilton Dawson: The amendments are designed to ensure that the judiciary have the power to hand down a maximum sentence of 14 years in any case where a person is convicted of paying for sex with a child, and to remove the upper limit of seven years where the child is aged 16 or over. I am grateful to Liberal Democrat Members for supporting the amendments.
 The Government are worthy of enormous praise for the introduction of clauses 49 to 53. For the first time, the range of offences related to the abuse of children through prostitution and pornography are properly laid out in law. The clauses acknowledge that all children up to the age of 18 are victims of those dreadful forms of abuse. The fact that they are in the Bill is a great credit to the Government, as they are some of its most important elements. 
 Clause 49 could be improved, and I am extremely grateful to a range of child care organisations for supporting the amendments. They are supported by Barnardo's, Childline, The Children's Society, End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes, the National Children's Bureau, the National Society for the Prevention of Cruelty to Children, NCH and UNICEF UK. The amendments ask the Government to reconsider the age distinctions that relate to sentencing, to ensure that the circumstances of each case can be taken into proper consideration. At the moment the clause proposes that, for cases involving under-16s, the maximum sentence should be imprisonment for 14 years, and for under-13s, it should be life; that is entirely in accordance with the principles set out elsewhere in the Bill. However, for 16 and 17-year-olds, the proposed maximum sentence is seven years. The amendments would ensure that the court had at its disposal a maximum sentence of up to 14 years imprisonment in all cases involving children over 13. 
 The offence of paying for sex with a child is based on the recommendations in ''Setting the Boundaries'', a major review of sex offences which sets out clearly that the law needs to make it plain that young people under 18 should not sell, or be sold for, sex. Quite properly, the review uses the United Nations convention on the rights of the child's definition of ''child'' as anyone under 18. Article 19 of that convention states that all children should be protected from violence and abuse. 
 By making distinctions in the maximum sentence on the basis of age, the clause implies that, in all cases, the gravity of the offence and the effects on the child are 
 less if the child is over 16, whatever the evidence of the circumstances in which that crime was committed. The lower maximum sentence for 16 and 17-year-olds, and for 17-year-olds in Northern Ireland, implies that the fact that the child is old enough to consent to sexual intercourse is relevant to the offences, and that the child can give informed consent to involvement in prostitution. 
 All research would suggest that the reality for children is that prostitution has nothing to do with consent and the age of consent. The experiences of children abused through prostitution demonstrate that a high level of control and coercion by adults is involved. That means that any distinctions in the law made on the basis of the concept of consent to sexual intercourse outside the context of prostitution are irrelevant. 
 I have before me a book called, ''More than one chance! Young people involved in prostitution speak out''—an interesting and worthy document, which I recommend to the Committee. There is a relevant quote from a woman called Frances, who says: 
''There's nothing nice, nothing empowering, nothing glamorous about prostitution, it destroys you, it destroys your soul, it's an awful way of life. I've met lots and lots of women while I worked as a prostitute and since I've left prostitution . . . never once have I met a confident, happy, contented hooker, I've just met very devastated and damaged people and drug-addicted people. And people get out and can rebuild their lives, you know, and be happy, but when you're in it it's a very sad and lonely world.''
 That woman was 32, but she had been working as a prostitute since the age of 14. We should all acknowledge that the age of consent is completely irrelevant to that sad and lonely world, which would destroy the soul of someone aged 16 or 17 just as effectively as that of someone aged 14 or 15. 
 The charities say that because of their work with children and young people abused through prostitution they know that the control and coercion imposed on 16 and 17-year-olds most often commences at a much younger age. Young people at that age are conditioned into a lifestyle of sexual exploitation, with the result that they are not able to make informed choices, whether they are 14, 15, 16 or 17 years old. By making payment for sex with a child under 18 an offence, the clause recognises that there is a complex range of factors behind children's involvement in prostitution. 
 We know the risk factors: the prevalence of disruption in early life, experiences of family breakdown and conflict and of physical and sexual abuse, the trauma of being looked after and the experiences that led to that, the targeting of care institutions by adult male abusers, the experiences of children and young people who run away or are forced to leave home or substitute care, and drug use. Vulnerability at whatever age—14, 15, 16 or 17—is identified and targeted by abusers and the risk factors that we have identified apply to all children abused through prostitution, irrespective of whether they have reached the age at which they are legally deemed able to give consent to sexual activity in more normal circumstances. 
 In making it an offence to pay for sex with a child under 18, the Bill should follow through its rationale by ensuring that the provisions on sentencing recognise the reality of the abuse that children suffer through prostitution and recognise that 16 and 17-year-olds have no more ability to make informed choices about their involvement in prostitution than younger children aged 13 to 15. 
 In accordance with the fact that much is truly excellent in the Bill, we should support the amendments and ensure that we protect all children in every way that we can from all the harm caused by that dreadful form of abuse.

Sandra Gidley: I do not propose to repeat at length the arguments put by the hon. Member for Lancaster and Wyre (Mr. Dawson), which we Liberal Democrats agree with wholeheartedly. I just want to voice my concern that in the other place the Government, responding to similar concerns, placed great weight on the age of consent as a factor. I support the hon. Gentleman when he says that consent often should not be a factor in such cases because prostitution and child pornography are both coercive in nature and not something that 16 or 17-year-olds, or anyone of any age, indulge in if they have any choice. Sometimes people do such things because they think that they have no choice; they have no money, or they may have left home. It is all about coercion.
 The emphasis on the age of consent, and the fact that age must be proved, is of concern because the onus is on the prosecution to establish the offender's belief in the age of the child. There are concerns that that could result in fewer prosecutions or in the passing of more lenient sentences, because of the difficulty of establishing age. So we support the amendments, which clarify that the Bill is really about protecting children of all ages and that includes those between the ages of 16 and 18.

Dominic Grieve: I have great sympathy with the amendment moved by the hon. Member for Lancaster and Wyre. Clearly, prostitution is undesirable in relation to those of any age. If it involves those under 18, it is a very serious matter. I am in favour of his amendment. It seems to me that if one got rid of the two-tier system of sentences of seven and 14 years, it would still leave a measure of discretion to the court. The younger the child, the heavier the sentence is likely to be.
 Against that, I can also see the Government's approach to the matter. Given that we have certain rules for those over 16, and those under 16, in relation to general sexual behaviour, making a distinction regarding the maximum sentence to reflect that is a perfectly correct approach, which is found in all sorts of statutes and criminal offences. That said, I have sympathy with what the hon. Gentleman is seeking to do, which would send out a powerful message. 
 It would be interesting to hear from the Minister whether there are examples of circumstances where she is satisfied that in the case of an activity with a child of 17 there is no possibility whatever that a court would wish to impose a sentence of imprisonment of more 
 than seven years. I suspect that the Minister will say that the Government have thought about that and cannot think of such an example under current sentencing tariffs. As I say, we could simply leave the matter to the court's discretion.

Hilton Dawson: I was much persuaded by the hon. Gentleman's arguments during the previous debate on indecent photographs. I do not understand why he is slightly demurring over these amendments, which I should have thought are based on the same principle—that of recognising that children are children under 18, and ensuring that they are protected. In this case, it is a matter of a worse form of abuse.

Dominic Grieve: I appreciate the hon. Gentleman's point, but there is a distinction. In one case, I was dealing with the question of what should or should not be criminal. We are now dealing with the way in which we reflect or mark our disapproval of conduct through the sentence imposed. The act is still criminal. There is a distinction to be made between those two concepts.
 I am grateful to the hon. Gentleman for his comments in relation to what I said earlier. I am sympathetic to the intention behind his amendment, but it is also right to say that it is undesirable to have on the statute book draconian penalties relating to criminal offences that are never imposed in reality. There should be something in the tariff that reflects what is likely to be imposed by the court; otherwise, as I am sure the hon. Gentleman will understand, there would be no point in Parliament putting upper limits on tariffs at all. 
 We could, if we wanted, remove all upper limits on tariff sentences and tell judges to do whatever they like. A burglar or someone stealing in a particularly serious case could be sent to prison for life. We could remove all tariffs if Parliament wished to do so. Historically, we have tended to impose upper limits, and those limits are supposed to mark what we consider to be the most serious type of offence in relation to the category of criminality that we are considering. The difference between the categories of seven and 14 years is that prostitution with a child under 16 is deemed to be more serious because that child cannot consent to sexual intercourse at all. That is the distinction. 
 The hon. Gentleman's amendment could easily be accepted if the Government wanted it, and I shall be interested to hear from the Minister the reasons for making this particular distinction.

Beverley Hughes: As we have heard, clause 49 introduces a new offence, and I am grateful for the recognition by my hon. Friend the Member for Lancaster and Wyre of the importance of introducing a new offence, criminalising paying for the sexual services of a child. Existing criminal law as it relates to prostitution focuses only on the activities of the prostitutes themselves, or those who exploit them, such as their pimps. Although it is currently unlawful to engage in sexual activity with a child under 16, we are for the first time making it a criminal offence specifically to buy the sexual services of a child. We must focus on that point in this debate, which is specifically about the purchase of the sexual services of
 a child. Other offences in the Bill, which we have debated, make sexual activity with a child a criminal act in its own right.
 As my hon. Friend said, the amendment's purpose is to remove the distinctions by age on the proposed penalties for the offence. As it is drafted, the offence carries three bands of penalties, depending on the age of the child victim and the type of sexual service that was paid for. For penetrative sexual activity involving a child under 13, an offender could face life imprisonment. For non-penetrative sex with a child under 13, or any type of sex with a child aged 13 to 16, the offence carries a heavy maximum penalty of 14 years. For any type of sexual services bought from a child aged 16 or 17, an offender faces a maximum of seven years in prison. 
 I would say first to my hon. Friend that an amendment saying, for example, that there should simply be a maximum penalty for all those different circumstances such as life imprisonment or 14 years has not been tabled today. Members of the Committee, including my hon. Friend, have implicitly accepted the point raised by the hon. Member for Beaconsfield, which is that we have a well-established practice of setting down maximum sentences when we are criminalising certain behaviour to take into account different circumstances in different scenarios, and what we think the upper limit of what courts are likely to impose would be. My hon. Friend has implicitly accepted that the gradation of sentencing in relation to those offences to reflect the varying vulnerability of children, the nature of the sexual activity and the particular circumstances is both reasonable and proportionate, which is why there are three gradations. My hon. Friend is not arguing against the distinctions at the upper limits. 
 Secondly, the fact that three grades of sentencing are proposed does not mean that the activity is any less serious in one situation or another. We are criminalising the activity because it is a wholly serious matter whenever someone pays for the sexual services of anyone under 18. However, the maximum sentences imposed should reflect not lesser seriousness but the different circumstances in relation to the vulnerability of children. 
 Thirdly, I point out to my hon. Friend the Member for Lancaster and Wyre that a seven-year sentence is still, by anyone's standards, a significant maximum sentence for a court to be able to impose. In part, a seven-year sentence for offences relating to young people aged 16 or 17 reflects—I take his point that in some circumstances such young people are very vulnerable—the fact that they are over the legal age of consent to sexual activity. It is therefore appropriate that that particular factor is part of the reason why the maximum penalty is focused on paying for the sexual services of a child as opposed to the circumstances, age and vulnerability of the child, which is certainly the focus of the other two groups. 
 I say to my hon. Friend that the argument is difficult. I understand his point and there could be a legitimate reason for saying, ''Let's have no gradations 
 whatsoever. Let's simply have life imprisonment, and we'll let the courts decide.'' We have not often taken that route when legislating. It is a valid approach to say that we should reflect different circumstances in the different maximum tariffs that we want courts to be able to impose. That largely reflects what we think that courts will want to do. We do not envisage it as very likely that a court will want to impose a sentence of more than seven years in a situation involving a young person of 16 or 17. 
 This is a matter of judgment. I am not saying that my hon. Friend's argument is not valid, but in using gradations of sentencing we are following a well established tradition, which we feel has validity to distinguish in law, in this new offence of paying for the sexual services of a child, children of different ages and different vulnerabilities with different maximum sentences.

Hilton Dawson: I am grateful to my hon. Friend for her reply, but I am quite disappointed by it. I accepted when I first spoke that the Government were maintaining the very important distinction that there has been throughout the Bill between under-13s and those aged 13 and over. I accept entirely that there is an important gradation of sentencing for those who abuse children in those particular age groups.
 However, my hon. Friend has not convinced me in any way at all that abuse through prostitution has any link with the age of consent of 16. All the experience of young people who have been involved in prostitution, and all the work that has been undertaken with young people who have been subjected to that appalling abuse, says nothing about the age of consent or about ordinary, normal relationships undertaken by young people over the age of 16. This is one of the most appalling, coercive, damaging forms of child abuse that there can be and it is, quite honestly, a great shame that despite accepting the United Nations convention definition that a child is someone under the age of 18 and the definition laid down in our Children Act 1989 that a child is anyone under the age of 18, the Government seek to draw what I regard as a spurious distinction between under-16s and those aged 16 and over. 
 I have not attempted to argue that we should have mandatory sentences, or the opportunity for sentences of life imprisonment, for people convicted of such offences against children aged 13 and over, but I cannot believe it right for the Committee to rule out the possibility that a court might want to sentence someone convicted of the abuse of someone aged 16 to more than seven years imprisonment. We make a mistake by not allowing that possibility. Decisions must be taken on individual circumstances. I am not seeking to argue that everyone convicted of this appalling offence should immediately receive a sentence of 14 years, but we are wrong to rule out the possibility of a court wanting to do that, with the major point of sentencing being to protect the public and other young people from someone who has abused children in that way. 
 I have fully acknowledged that we owe a huge debt of gratitude to the Government for introducing clause 49 and the other clauses associated with it. It is fine 
 legislation indeed, and it would be a shame if it were not carried through to the fullest possible extent. I shall withdraw the amendment, but with real regret. I hope that my hon. Friend will spend time to reflect on the issue and think again about the clause. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 49 ordered to stand part of the Bill.

Clause 50 - Causing or inciting child prostitution or pornography

Dominic Grieve: I beg to move amendment No. 238, in
clause 50, page 26, line 43, leave out subparagraph (ii).
 This is a simple query, which goes back to something that I raised earlier. The Government have unfolded a panoply of offences in the Bill, and I make no criticism of that. However, there is a great deal of duplication. 
 In the case of a child under the age of 13, causing or inciting child prostitution or pornography will be punishable by 14 years imprisonment. However, in terms of prostitution, the offence is identical to causing or inciting a child under 13 to engage in sexual activity under clause 9, the maximum penalty for which is life imprisonment—I am assuming that both would involve penetrative sexual contact, and prostitution normally would. I accept that pornography might be slightly different, but that still involves sexual activity so it would still be punishable by 14 years imprisonment even if it involved only sexual touching. 
 Prosecutors will be faced with an array of options and, although I accept that in some cases options can be useful, I wonder whether the range that we are providing sends out mixed messages. On the face of it, encouraging a child under 13 to engage in prostitution is causing or inciting a child under 13 to engage in sexual activity, which is apparently a more serious offence. Will there be guidelines on how prosecutors should approach that? In this part of the Bill, there is a tendency to provide for those under 13 an offence where an offence already exists because of the absolute prohibition on sexual activity earlier in the Bill. I should be grateful if the Minister would explain her reasons.

Humfrey Malins: My hon. Friend hits on an interesting point. I have compared clause 9 with clause 50. Under clause 50, the offence of causing a person to become a prostitute is potentially much more serious because we are talking about an ongoing horrible activity, whereas under clause 9 it is a one-off offence.

Dominic Grieve: My hon. Friend makes a very good point. That is precisely why I think that we are in danger of causing a muddle. The Minister may be able to provide some cogent explanations as to why it has been felt that the under-13s need to be catered for under these clauses. Clause 50 is a classic example of duplication: there is already a substantial measure of protection provided by the general prohibitions on sexual activity.

Stephen Hesford: In terms of the hon. Gentleman's practice at the Bar—he will have watched the sentencing process on many occasions—if we get this wrong, does that not throw the dilemma to the courts? There might be offences of roughly comparable natures. For example, there might be a maximum of 14 years imprisonment for one thing, and an arguably similar offence might have a maximum of seven years. In terms of the relative merits of those offences, would it not be a rough guesstimate to say that the courts would view one as half as serious as the other?

Dominic Grieve: The hon. Gentleman makes a good point. When drafting an indictment in the Crown court, it is quite common for there to be a serious offence that requires specific ingredients of proof and a lesser offence that has different ingredients.
 I turn to the features of clauses 9 and 50. To leave pornography to one side, with regard to inciting prostitution involving a child under 13, it seems to me that the ingredients will be identical except for one addition: in clause 50, it must be shown that the sexual activity was part of prostitution. In those circumstances, it is unlikely that both offences would be on an indictment. It is likely that there would be an either/or situation in which the prosecution must decide which to pick; and there is always the risk that at the end of the trial the judge might say, ''I can't understand why the prosecution decided to proceed with an offence that is only punishable by 14 years imprisonment because if they had proceeded with the other case I would have dished out life imprisonment.'' If that were to happen, there would be a big public outcry and lots of criticism of the prosecutor—I do not know whether that would be well founded. 
 I do not see these two offences as alternatives that could be put on a single indictment. To do that would be sloppy practice; if someone tried it, the judge might raise an eyebrow. The prosecutor will therefore have to make the choice—and it will have to be the right one. 
 This is why I get a bit worried about this plethora of options, all of which are punishing and criminalising what seem to me, in this case, to be virtually identical activities—although I accept that things might be slightly different in the case of pornography.

Beverley Hughes: It is my understanding that this debate covers similar ground to a debate on Tuesday about amendment No. 203 on familial child sex offences. I was not present then, but I have been informed about that discussion. For the sake of clarity, if the hon. Gentleman is rehearsing that today, I will try to reply on that basis. However, the amendment would not exclude children under 13 from the province of this offence; it would simply raise the possibility of a defence of reasonable belief with regard to age. If I can take it from the hon. Gentleman that that is a technicality that I can ignore in replying to this debate, I will do so.
 I assure the hon. Gentleman that in cases where there is evidence that a child has engaged in sexual activity, we would expect the offences in clause 9 to frame the charges. Guidelines will be produced for the Crown Prosecution Service on charging issues relating 
 to the Bill in general, and we intend it to include that specific guidance. However, if it were uncertain whether sex has taken place, it would be appropriate and necessary to be able to lay a charge under clause 50, as long as the other circumstances of the offence fitted with the prostitution or pornography requirement.

Dominic Grieve: That may be a problem with clause 9. However, that clause does not require sexual activity to have taken place, because the offence can either be causing it—in which case it must have taken place—or just inciting it. I fully understand the Minister's argument about whether it has happened, but in fact in clause 9 we are providing a high level of criminalisation—including, potentially, life imprisonment—for the incitement to that activity.

Beverley Hughes: Yes, the hon. Gentleman is right; the incitement element of clause 9 has a substantial overlap with the provisions in clause 50. However, although the guidance will stress that we expect clause 9 to be used whenever possible, we did not want to rule out, at this stage, the possibility that there might be circumstances in which clause 50 would be appropriate or desirable. If actual sexual activity or inciting sexual activity with a child occurs in the context of a child prostitution racket or gang, it might be important, given that we have put the new offences on the statute book, to bring such additional charges on the defendant.
 We are making an important statement in bringing forward the new offences, and it did not seem right to rule out at the outset the possibility of bringing an offence against a defendant in relation to prostitution or pornography involving a child under 13, even though I agree with the hon. Gentleman that in most instances clause 9 would provide an appropriate charge. I hope that, in that spirit, the hon. Gentleman will accept that we would not want to circumscribe clause 50 at this stage. I would rather leave it as it is. I accept the hon. Gentleman's main point, which is that there is a substantial overlap, but I would prefer to leave the flexibility with the prosecutors and the courts.

Dominic Grieve: I am grateful to the Minister for clarifying the matter, and I shall certainly not press the amendment. I shall just say—perhaps before Report the Minister will mull it over with her officials, not just in relation to this clause but in relation to others, too—that this is a blunderbuss Bill. That may be a good thing, but I have a concern. Perhaps I should not listen to the judiciary too much, but they have a slight tendency to say that a surfeit of possibilities is not necessarily conducive to establishing good legal practice. Quite apart from anything else, of course, it results in a multiplicity of sentencing.
 A sentencing regime may start to grow up in relation to one offence and, although really the facts are virtually identical to those in another offence, a divergence in sentencing may start to show, precisely because there are too many options. It might be better to concentrate on one option and get diversity within that, rather than having judges look in the wrong 
 section of Thomas on sentencing, and look at sentencing for one offence and not the other. Those are practical points, but simplicity is the handmaid of justice, and we are creating quite a complicated framework in which one can be punished by a variety of routes. I raise the general question of whether that is desirable. 
 It may well be that close examination of each clause will mean that one can be satisfied that the offence could be proved in a slightly different way, in which case I withdraw my objections. However, in many cases it seems that the clause is pure duplication, and there are potential downsides to that. Although I appreciate that the Minister wants to send out a clear signal about the disapproval of activities identified on statute, people will have to work with the statute; it is not just a statement of Parliament's intention. 
 It is important that statute is simple and straightforward, and that people understand the basic ground rules and are not constantly saying, ''Goodness me, this is an offence that I haven't come across. Now, are the ingredients different from those for another offence?'' Those extra layers of complication are not always helpful in getting the desired result. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 50 ordered to stand part of the Bill.

Clause 51 - Controlling a child prostitute or

Sandra Gidley: I beg to move amendment No. 233, in
clause 51, page 27, line 8, after 'intentionally', insert 'or knowingly'.

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 234, in 
clause 52, page 27, line 22, after 'intentionally', insert 'or knowingly'.
 Amendment No. 235, in 
clause 54, page 28, line 4, after 'intentionally', insert 'or knowingly'.
 Amendment No. 236, in 
clause 55, page 28, line 14, after 'intentionally', insert 'or knowingly'.

Sandra Gidley: The amendments are intended to probe clause 51 and other relevant clauses to find out whether they might be strengthened by changing the words ''intentionally controlling'' to ''intentionally or knowingly controlling''. I admit to having tabled the amendments after reading the Metropolitan police's comment that prostitution and pornography were big businesses and that, although the police had no problem in prosecuting the small guys, often, at the bigger business end of the market, particularly in prostitution, there was a human firewall between the pimp and the enterprise.
 Under current legislation, the police are asked to prove three things. First, they must prove that prostitution, or the activity in question, is taking place, which is generally relatively easy to prove. 
 Secondly, they must prove that the principal knew about it. Thirdly, they need to prove that that person gained financially. The latter is also relatively easy to prove, with a bit of work. However, the depth of the investigation almost invariably focuses on the second point—knowledge of what was going on. The police think that at the moment, as the law stands, they have a fighting chance of proving what is going on, but they are aware of various investigations in which they would have had great difficulty proving a case using the words ''intentionally controlling'', as is proposed in the Bill. 
 The police cite a number of loopholes. For example, Operation Rapel described John Murray-Smith as probably the biggest brothel owner in London. He never went near the industry and took no part in running or organising things. His bank account showed that he was gaining financially, so it was relatively easy to prove that he was involved in prostitution. However, proving that he had knowledge of what was going on was protracted work for the police, requiring several months of covert operations. It was eventually established that he must have known about what was taking place over the many months during which he was investigated. The police maintain, however, that it would have been impossible to prove that he was intentionally controlling prostitution, because he set up the system to ensure that he was far removed from the business end. 
 There are other possible loopholes, such as the pimp who drops his girl off in a red-light district and waits at home for her to bring back the money. He may say, ''Yes, I knew she was working as a prostitute and giving me money, but she wanted to do it. It is not my intention that she did it.'' A brothel owner who advertises his premises for massage and takes a huge percentage of the earnings—

Humfrey Malins: I am following the hon. Lady's argument with interest. She, like the rest of us, seeks to improve the position. Is she troubled about the word ''controls'', or about the word ''intentionally''? Will she develop a bit further the proposition that the phrase ''intentionally or knowingly controls'' is wider and more likely to cope with the dilemma she mentioned earlier than the current wording?

Sandra Gidley: There is a problem with just using the word ''intentionally''—the police say that it would be difficult to prove intent.
 It is easier to prove that someone did something ''knowingly'', particularly if money is going into their bank account as a result of certain activities. For example, a brothel owner who is ostensibly running a massage parlour could use the argument, ''Well, you know it's not my intent that they behave as prostitutes. So what if they give extras for the cash?'' In reality, he knows very well what is going on and is reaping the rewards. The amendments would establish whether the Government are happy that prosecutions can be made in such circumstances.

Beverley Hughes: Adding ''knowingly'' to the provisions on the offences would add little to the mens rea and interpretation of what is in the mind of
 the defendant. It is difficult to understand how someone, for example, can knowingly control, incite or cause the prostitution of another person without intentionally doing so. There is no point in adding ''knowingly'' to the clause; its meaning is encompassed by ''intentionally''.
 The purpose of the offences is to tackle the exploitive aspects of the sex industry. They replace existing legislation, such as section 31 of the Sex Offences Act 1956, which deals with a woman exercising control over a prostitute. I mentioned that because the section uses ''knowingly'', not ''intentionally'', which is probably why the hon. Lady tabled the amendment. It makes sense in the context of the offence of knowingly living on the earnings of a prostitute, because someone could be living with a prostitute and conceivably not know how she is earning money. The purpose of adding ''knowingly'' in that context is to make sure that the prosecution has to prove that the defendant both knows that the woman is a prostitute and that he is living wholly or in part on her earnings. The term ''knowingly'' makes much less sense in the context of the new offences under the Bill. In any event, it is difficult to envisage what the term is intended to cover that is not covered by ''intentionally''. 
 Work is under way on a consultation paper examining issues relating to prostitution, the public nuisance that it causes and the organised criminality and drug abuse with which it is associated. The Home Secretary announced the paper in the summer and it is likely that it will also consider legislation associated with the difficult area of prostitution. We hope to consider those issues in great depth when undertaking such work. I mention the paper because the hon. Member for Romsey referred to prosecuting people who organise prostitution, but who distance themselves from it—the big boys, as they are described. Brothel-related activities were not considered in ''Setting the Boundaries'', because they are prostitution-related issues, and thus outside the scope of the Bill. They will therefore have to wait until we have a clearer picture of some of the complex issues surrounding that subject as a result of the review. 
 We resist the amendment for two reasons, the first of which is that ''knowingly'' is encompassed by ''intentionally''. Secondly, the broader issues raised by the hon. Lady about making sure that we can reach those who are controlling prostitution activity in a big way are outside the scope of the Bill, but will be part of the review that has now commenced. If that reassures the hon. Lady, I invite her to withdraw the amendment.

Sandra Gidley: I said at the beginning that the amendments were tabled to ascertain whether the concerns of the Metropolitan police were realistic. The police have to deal with such things in practice, so I was quite taken by their arguments. However, I understand the point about the wider aspects of prostitution, and that there will be further legislation. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 51 ordered to stand part of the Bill. 
 Clause 52 ordered to stand part of the Bill.

Clause 53 - Sections 50 to 52: interpretation

Amendment made: No. 92, in 
clause 53, page 27, line 35, leave out 'moving or still'.—[Mr. Heppell.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Sandra Gidley: I seek clarification on the interpretation clause. The definition of ''prostitute'' does not pose any problems, but the definition of ''pornography'' gives rise to certain questions in my mind. The Bill seems to deal solely with images. There is a certain amount of written material that clearly describes child pornography and could put ideas into somebody's head, if they were minded to read it. I am particularly mindful of some of the more sadistic child pornography. Will the Minister clarify whether there is any way in which we could tighten up on the sort of written material that promotes the very activities that the Bill seeks to reduce?

Beverley Hughes: I am not quite sure what the hon. Lady is referring to, but if she would like to elaborate outside the Committee, I am certainly willing to consider whether we need to firm up on that. I thought that she was going to return to the definition of ''indecent'', which is part and parcel of subsection (1).

Paul Beresford: I back the thought of the hon. Member for Romsey, who has queried the clause. I raised the matter on Second Reading. It is well known that many paedophiles have written material of a nature that would shock most, if not all, of the people on the Committee. Paedophiles use such material to stimulate themselves and others and they spread it. I accept that that is an exceptionally difficult area in which to apply the law and I suspect that the Minister will have extreme difficulty in dealing with it. That was the response before.

Beverley Hughes: We also have to remember that we are discussing images. That is the point that the hon. Member for Romsey makes when she asks whether we need to go beyond images. We define pornography as images. Other legislation makes indecent or obscene written text a prosecutable offence. We have covered those different situations in existing law and, in the definition of pornography in the Bill, for the specific situation in which the real image of a child has been made into pornography. That is the distinction. I am happy to check with officials to ensure that the existing legislation, primarily the Obscene Publications Act 1959, covers the situation that she has raised.

Dominic Grieve: The 1959 Act covers the situations raised by the hon. Member for Romsey, but it is archaic. I do not know how many prosecutions for written text there have been under the 1959 Act in the past 12 months, but the Minister will find that it is a statute that, in that context, has fallen into disuse. Perhaps the Minister will tell me about a bold Government, who are going to grasp that particular
 nettle, and produce an obscene publications Bill for the 21st century.

Beverley Hughes: No, I certainly was not going to say that. I gave the hon. Member for Romsey a commitment to consider, within the scope of the Bill, and taking account of the point just made, whether there is anything further that we can do to address the situation that she identified. I do not think that there will be, but I will consider that point for her.
 Question put and agreed to. 
 Clause 53, as amended, ordered to stand part of the Bill. 
 Clauses 54 to 57 ordered to stand part of the Bill.

Schedule 1 - Extension of gender-specific

Question proposed, That this schedule be the First schedule to the Bill.

Win Griffiths: With this it will be convenient to discuss the following:
 New clause 3—Prostitution by children and young persons— 
No. NC3, to move the following Clause:— 
 'In section 1(1) of the Street Offences Act 1959 (c.57) (which makes it an offence for a common prostitute to loiter or solicit for the purpose of prostitution) before ''to loiter'' insert ''aged 18 or over''.'.

Beverley Hughes: The new offences in clauses 49 to 56 to tackle prostitution and child pornography replace existing legislation, but they do not replace all existing prostitution legislation. The provisions relating to kerb crawling, loitering and soliciting for prostitution, among others, remain on the statute book. That is because of the point that I made in response to the hon. Member for Romsey. Primarily, the area of prostitution, rather than the exploitation of people through prostitution, was outside of the remit of the sexual offences review, which recommended a further review of matters relating to prostitution. The Home Secretary announced that review earlier this year.
 Clause 57 rectifies one of the fundamental flaws in existing legislation—the fact that it is gender-specific. Most existing prostitution legislation is framed in terms of men committing offences against female prostitutes. However, male and female prostitutes can be exploited both by someone of their own sex and by someone of the opposite sex. The law is outdated, and clause 57 introduces and brings into effect schedule 1 to make the legislation gender neutral. I do not propose to go through all the details. Schedule 1 lists all the legislation to which clause 57 applies. 
 While I am on my feet, perhaps I could deal with proposed new clause 3. It would amend the offence of loitering or soliciting for the purposes of prostitution in section 1(1) of the Street Offences Act 1959. That is outside the scope of the Bill, but we believe that it should be taken up in the review that I have outlined. Therefore, I ask my hon. Friend the Member for Lancaster and Wyre not to press the new clause, but I 
 will be happy to make some more points when he has spoken to it.

Hilton Dawson: I take to heart my hon. Friend's views and I am pleased with her comments.
 I have discussed new clause 3 with the Children's Rights Alliance for England following the assurance given by my right hon. Friend the Home Secretary on Second Reading that children who find themselves engaged in prostitution are now decriminalised. The alliance believes that such an amendment is required to the Street Offences Act 1959 to put the cap on the problem. I am grateful for the work that my hon. Friend will continue to undertake on the matter. 
 Question put and agreed to. 
 Schedule 1 agreed to.

Clause 58 - Trafficking into the UK for

Amendment made: No. 93, in 
clause 58, page 28, line 36, leave out '(A)'.—[Mr. Heppell.]

Hilton Dawson: I beg to move amendment No. 12, in
clause 58, page 29, line 12, at end add— 
 '(3) A person guilty of an offence against a person aged under 18 under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 222, in 
clause 58, page 29, line 12, at end add— 
 '(3) A person guilty of an offence against a person under 18 under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years.'.
 Amendment No. 13, in 
clause 59, page 29, line 27, at end add— 
 '(3) A person guilty of an offence against a person aged under 18 under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.
 Amendment No. 14, in 
clause 60, page 29, line 42, at end add— 
 '(3) A person guilty of an offence against a person aged under 18 under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

Hilton Dawson: I am grateful for the Committee's support for these amendments. Above all, I am grateful to the Minister and the Government for the clauses as drafted and the historic commitment to combat the trafficking of people into and out of the United Kingdom for sexual purposes. I firmly believe that there is a long way further to go, but it is outside the scope of the Bill to deal with trafficking for purposes of domestic servitude, which is a huge issue. It is also outside the scope of the Bill, but well within that of the excellent Green Paper on children's services that was published last week, to deal with the fact that we do not have an appropriate response to the needs of children who are trafficked into this country.
 The clause is important and deals well with an appalling practice. However, it could be strengthened markedly in relation to children with the addition of the words in amendments Nos. 12, 13 and 14, which 
 would cover children who are trafficked into this country. I do not seek in any way to minimise the abuse that is heaped on adults who are trafficked into this country, but children require special special consideration. Children who are trafficked into this country could be further protected if the people who engage in this wicked crime were subject to a much longer sentence than the summary jurisdiction that would leave them facing only a six-month sentence. I do not want to go around the houses again on the length of sentences given, but it is important to emphasise the seriousness of the offence by ensuring that people who are convicted of it face a substantial period of imprisonment, during which time they will be unable to carry out further offences.

Humfrey Malins: I support what the hon. Gentleman has said. He has argued the case very well and will know that our amendment No. 222 is almost identical. He alluded to other forms of trafficking that are outside the scope of the Bill, but trafficking itself is a very nasty offence. May I venture a few thoughts about its gravity? The hon. Member for Walthamstow (Mr. Gerrard) and I are familiar with the world of asylum. We know about the awful offences of trafficking that are carried out by gangs for reward in that connection, and we abhor that offence. We also know about trafficking for the purposes of prostitution and regard that as a very unpleasant offence indeed.
 Trafficking for the purposes of prostitution is, perhaps, more serious, in that there is a position of domination over the person being trafficked. We grade the offences in our mind. We regard all forms of trafficking as appalling, but we might regard trafficking for prostitution as a harsher, nastier business than trafficking per se for the purposes of seeking asylum or settlement. I make those points only to illustrate that there are levels of gravity.

Neil Gerrard: I understand the point that the hon. Gentleman is making. I believe that he is talking about the effects on the person who is brought into the country, because that surely is the distinction. In many cases of asylum or illegal immigration, it would actually be better to use the term smuggling, because the person who is being brought in knows full well what is happening. In a sense, it is a commercial transaction: the person who is brought into the country pays their money and that is the end of the business. One may not want to make so great a distinction as to the gravity of the offence as far as the trafficker is concerned, but there certainly is a distinction to be made about the person who is brought into the country.

Humfrey Malins: The hon. Gentleman, with his vast experience, makes a good point. What I am coming to—rather laboriously, perhaps—is that trafficking for purposes of prostitution involves humiliation and degradation for the person being trafficked, but it is much, much worse in our minds if the person being trafficked is a child. To take a robust view—I mean this gently—we are not as aghast that grown-ups are trafficked for the purposes of prostitution as we are that children are trafficked for that purpose. There is a
 distinction. Both offences are horrible, but the trafficking of children is absolutely appalling.
 That is why it is fair to recognise the very special protection required for children by saying—I think that the hon. Member for Lancaster and Wyre has done us a service—that if a trafficking offence relates to someone under 18, it should only be triable on indictment. I can think of no circumstances at all in which such an offence would merit being tried summarily: that is, with a maximum punishment of a six-month sentence. When one is sentenced to six months in prison by a magistrates court, one does six weeks. I cannot think of a situation in which such a low level of punishment would fit such a grievous offence. I hope that the Minister will take that point on board and come back to us on Report if she thinks that there is a particular need for a particular punishment for offences relating to a child.

Beverley Hughes: I do not think that there is anything between Government and Opposition in the Committee in terms of our attitude to people who perpetrate these offences and in terms of the intention behind the provisions in the Bill, which extend the definition of trafficking to activities within the United Kingdom for the first time. We share the abhorrence and want to put in place legislation that will help to bear down on people who conduct that traffic in children and adults—the latter are largely, but not exclusively, women.
 We framed the provision to allow for summary trial because it is often in the nature of trafficking, organised as it is, to involve a long chain of people. Some will be distant from the actual activity, organising it; some will be the key operational people doing the trafficking. Others may, along the line, play a tiny part: they may accommodate a person for a night and give them food and drink, for example. 
 Hon. Members may say to me, ''Even in such a case, if a child is involved, we should be using the full force of the law and making a statement in the legislation.'' There is a valid argument in that, which I will consider. However, the summary trial provision was included to allow for the fact that there could be some people with a very peripheral involvement for whom it would arguably not be necessary to clog up the Crown court with a full trial and indictment.

Dominic Grieve: What the hon. Lady says about clogging up the Crown court on the face of it is true, but equally, with an either-way offence, magistrates courts are clogged up: with, for example, plea before venue or arguments about where the case should go. So that takes more time; if the offence is indictable only, off it goes to the Crown court. Although I accept her point about clogging up the Crown court, other courts are clogged up by the procedural issues of either-way offences. In reality, it is almost inevitable that a case involving a child would be sent to the Crown court in any event.

Beverley Hughes: Certainly I agree; that is the other side of either-way offences and all the cases would
 start in the magistrates court. I take the hon. Gentleman's point. That was our reasoning; there is nothing between us in terms of our intent. I am happy to inquire further into whether we want to stick with that provision or whether there is an argument for accepting the spirit of the amendment. On that basis, I ask my hon. Friend the Member for Lancaster and Wyre to allow us time to do that and to withdraw the amendment.

Hilton Dawson: I am extremely grateful to my hon. Friend. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Sandra Gidley: I beg to move amendment No. 182, in
clause 58, page 29, line 12, at end insert— 
 '( ) a person who has been subject to trafficking into the UK for sexual exploitation shall be granted humanitarian protection.'.
 The amendment seeks to clarify the Government's intentions on the treatment of victims of trafficking and how that relates to the successful prosecution of trafficking offences. I could happily argue that any humanitarian protection provided should not be conditional on someone dishing the dirt on the trafficker. I raised that issue on Second Reading, and I was grateful for the Minister's reply. 
 I have been advised that there is a pilot scheme based in London, which caters for approximately 25 women at a time on a rolling basis. Although that is welcome, in the face of the scale of the problem it is a drop in the ocean. If we were writing a school report, we would say, ''Could do better''. 
 Earlier this year, I visited Italy and I was struck by the variety of humanitarian projects based around the country. They have sprung up to respond to needs. Some are local authority-based, several are organised by non-governmental organisations and a certain amount have central Government funding. There was an argument going on over there because there was a strong feeling that provision of help, aid and shelter could not be conditional on compliance. 
 I was also struck by the ability there to differentiate trafficking from all the other immigration and asylum issues, which are top of the political agenda in much the same way as they are here. Trafficking is regarded as separate and the public seem to understand its definition. Perhaps that could be worked on here. It is wrong to return women to their country of origin without providing them a means of escape from the circles that they were in, or from the people whose influence they were under and who suggested the trafficking. Very often, the women are victims because they feel that they have no other way. Often, we do not help the situation one little bit. 
 If we are talking about situations where help and protection is conditional on helping the police, a period of four weeks does not seem to be long enough. Any woman or child who fears traffickers might need longer before they feel comfortable and secure enough to be able to help the police in any inquiry. The amendment's aim is to find out more about the Government's intention. How will the pilot be evaluated? I would be happy if that information were 
 given to me in a letter. Perhaps we could consider greater provision in future. In the global scale of things, that would play a big part in reducing the problems that we face.

Neil Gerrard: I welcome this part of the Bill. I am glad that the Government have taken up the issue of trafficking. We signed the convention in 2000 that said that we would do something about trafficking, and I am pleased that it appears in the Bill. In some ways, I would have preferred it to be in a criminal justice Bill, as that would have allowed us to deal with trafficking for labour. There is no doubt that that happens to a significant extent, and I hope that we will return to it in future legislation. I understand why a Bill dealing with sexual offences cannot cover it, but I hope we do not forget that aspect of trafficking.
 Unquestionably, trafficking is becoming highly organised. The amendments raise the issue of how we deal with those organisations. A key part of that is that the people who have been trafficked should be treated as victims rather than criminals. 
 As I said on Second Reading, there is a surprising lack of hard evidence about the scale of trafficking, and who is involved in it. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.